During a status hearing Friday afternoon for Timothy Hale-Cusanelli, an Army reservist arrested on January 15 for his involvement in the January 6 protest in Washington, D.C., an assistant U.S. attorney admitted the government will not meet its discovery obligations for all Capitol defendants until early 2022.
Kathyrn Fifield, the lead attorney representing the Justice Department, informed Judge Trevor McFadden that the “incalculable” volume of video collected by the government related to the Capitol breach investigation will prevent defendants and their lawyers from accessing the full body of evidence against them for several more months. “No system exists to wrap its arms around [all this evidence],” Fifield told McFadden. This includes at least 14,000 hours of surveillance video plus thousands of hours of body-worn camera footage from law enforcement.
Fifield resisted setting a 2021 trial date for Hale; McFadden and Jonathan Crisp, Hale’s court-appointed attorney, told the government last month that unless a plea arrangement was agreed upon, a trial would be set for later this year because Hale already has been incarcerated for more than six months. “If we do set a trial date, the government cannot meet discovery obligations until early 2022. That’s a conservative estimate,” Fifield said.
Despite arresting more than 550 people since January 6, the government still has no platform for posting, sharing, and transferring digital evidence. “Due to the extraordinary nature of the January 6, 2021 Capitol Attack, the government anticipates that a large volume of materials may contain information relevant to this prosecution,” Fifield wrote in a July 14 filing. “These materials may include, but are not limited to, surveillance video, statements of similarly situated defendants, forensic searches of electronic devices and social media accounts of similarly situated defendants, and citizen tips. The government is working to develop a system that will facilitate access to these materials.”
At one point, the Justice Department was sharing digital evidence on Blu Ray discs.
Earlier this month, the department signed a multi-million dollar contract with Deloitte to create a “massive database” of evidence. But that process will take several weeks if not months. “The still-incomplete database has sharply slowed down efforts by prosecutors and defense attorneys to hammer out plea deals for dozens, of not hundreds, of alleged rioters,” Politico reported on July 9. “Several defendants have sought quick resolution of their cases only to be told by prosecutors that they must wait until the database is established.”
Despite the lack of evidence against him, Hale has been behind bars since January. He is not charged with any violent crimes but the Justice Department repeatedly—and successfully—has sought his pre-trial detention. (McFadden denied Hale’s release in March.)
An informant wore a wire to record a conversation with Hale about a “civil war” and military investigators interrogated nearly four dozen of Hale’s co-workers about his alleged “white supremacist” views. (My column explaining the case here.)
Hale was transported to at least five different prisons before arriving in early February at the D.C. jail specifically used to detain January 6 defendants. More than three dozen January 6 detainees are incarcerated at the D.C. Correctional Treatment Facility awaiting trial or plea offers.
On July 7, the D.C. Circuit Court denied Hale’s appeal seeking release.
McFadden scolded the government for its backwards process. “You would not arrest [someone] then gather evidence later. That’s not how this works.” When Fifield said full discovery is in the best interest of the defendant, McFadden shot back: “Freedom also is important to the defendant.” The Trump-appointed judge raised concerns over Sixth Amendment violations. “This does not feel what the Constitution [and] the Speedy Trial Act envisions.”
Despite the government’s confession that it is not prepared to make its case against Hale, McFadden set a trial date of November 9, 2021. (He did not release Hale, who has no criminal record, from prison.)
“No January Sixer should be made to suffer in a jail cell while the DOJ continues to delay discovery simply because it can,” one defense attorney told me by text this afternoon. “This is unprecedented, unreasonable, unconstitutional, and wrong.”